### THEA~ORNEY GENERAL OFTEXAS

Honorable William J. Burke ExecutiveDirector OpinionNo.

### WW-135
State Board of Control Austin, Texas. Re: Does the State Board of Control have authority to delete the rough and finished grading from one or more 'group contracts" involving grading and add this work to another contractwhich is a.part of thewhole jobbut a separate entity so far as completiondate is Dear Mr. Burke: concerned?

You have requestedan opinion on the following question:
'Does the State Board of Control have the

authority to delete the rough and finished grading from one or more tgroupcontracts' Involvinggrading and add thiswork to another contractwhich is a part of thewhole job but a separate concerned?'

entity so far as completion date is

This question Is based upon the following factual information contained in your request:

nOnAugust 

### 16, 1955, t.he State Board **of** Control entered into contractswith 3. 0. and C. D. Yarbrough Construction Company for the remodeling of the Texas State School for the Deaf. "Since itwas necessary to continuewith school during the constructionperiod,bids were receivedby building groups and the constructionwas scheduled in such a way as to interfere leastwith the school program...~ .
- -.

HonorableWilliam J. Burke, page 2 WW-135

"Thefollowing is quoted from the speclflcations. 'TheState of Texas will make separate contracts on separate groups to a low bidder 80 that he will receive 100% payment on completion and acceptance of any phase of thework.' 3. 0. and C. D. Yarbrough ConstructionCompany was the successfulbidder in all groups for both general and mechanicalwork. "The specificationsrequire the contractor to performall rough grading and finished grading for each group. The contractorhas requested 100% payment for several groups though grading on these groups has not been done. The Eoard of Control refused to approve the paymentuntil all work in each group has been completed. The contractor is now requesting that the grading portion of the contractswhich are otherwise completebe transferred to a group that is scheduled for completionat a later date. Ifhe is allowed to make this transfer,he will deduct the cost of grading from each group and add that same cost to another group; the contract price on each group affectedwould be changedbut at the completion of all groups the total contract price of all groups will be unchanged. The completed project would not be affected by this transfer,but there is the possibility that the contractorwould, as the result of such transfer,have an economic advantagewhich was not proposed to all other bidders on this project at the time bids were received." Under agreement datedAugust 16, 1955, the contractor has agreed to provide all materials and perform all the work as described in the specifications. Under the bid proposal the State of Texas agreed to make separate contracts on separate groups to the low bidder so thathe would receive lOO$ payment on completionand acceptance of any phase of the work. Therefore, under the agreement, be~forethe contractorwould be entitled to 100% payment for thework performedhe must complete thework prescribed for each group. This prescribedwork required that the grading be completed on each separate group. Therefore, if the State Board of Control deleted the grading from one or more groups and transferred such work to group 18 (roadwork) it would constitutea change of conditionsupon which each bidder bid on the contract.HonorableWilliam J. Burke, we 

### 3

Since the obligation of the State is upon completion of the work for each group, paid until the contractorhas completed the ed In the specifications for each group. SUMMARY 

### w-135

to pay the 100% thia cannot be grading requirThe State Board of Control does not have authority to delete the rough and finished grading from one or more 'group contracts" involving grading and add thiswork to another contractwhich is a part of thewhole jobbut a separate entity so far as completion date is concerned.

Yours very truly,
WILL WIISOR Attorney General

JR:at:rh
APPROVED OPINION COMMITTEE:
H. Grady Chandler

Chairman L. P. Lollar Grundg Williams J. L. Smith John Reeves Assistant

REVIEWEB FOR THE ATTORREY GERERAL By: Geo. P. Blackburn